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Stay on Ind. same-sex marriages clouds issue

INDIANAPOLIS — Last week, they were part of something historic — the first same-sex couples to ever be legally married in Indiana. But those newlyweds now find themselves front and center in a complicated and uncertain battle over just what their marriage means.

Stay on Ind. same-sex marriages clouds issue

Bart Peterson, left, and Peter McNamara exchange wedding vows inside the City County Building in Indianapolis on Wednesday, June 25, 2014 — the day a federal judge ruled that Indiana's ban on gay marriage is unconstitutional. On Friday, June 27, 2014, an appeals court stopped the marriages pending an appeal of the federal judge's ruling.(Photo: Brent Drinkut, The Indianapolis Star)

INDIANAPOLIS — Last week, they were part of something historic — the first same-sex couples to ever be legally married in Indiana. They viewed their vows as an important step toward not only formalizing a loving commitment but also finally achieving equal footing with other legally married couples.

But those newlyweds now find themselves front and center in a complicated and uncertain battle over just what their marriage means. And that equality they seek? It's not that simple.

Consider:

• Indiana's largest health insurance company, Anthem Blue Cross and Blue Shield, is advising some employers that they may — but don't have to — cover the same-sex spouses of their employees.

• State revenue officials were still scrambling to determine the ruling's tax implications and whether the new couples would be covered.

• Issues such as hospital visitation rights, death certificates and adoptions also may still depend on state or local interpretations of the law.

• And newlyweds have reported problems at local Social Security offices when they attempted to do something that other married spouses take for granted: change their names.

Steve Sanders, a law professor at the Indiana University Maurer School of Law in Bloomington, said same-sex couples who married, expecting to enjoy all the rights and privileges afforded to married male-female couples, could find themselves facing long waits or even having to return to court to sort out their rights and status.

That uncertainty moving forward is such that Sanders said he would advise same-sex couples against rushing to marry.

"I can sympathize, and I certainly understand the impulse," he said, "but I personally think it's a mistake."

The status of those marriages and the validity of the licenses of other couples who had not yet been officially married was further clouded with the stay issued late Friday by the 7th U.S. Circuit Court of Appeals in Chicago.

The stay, which was expected, halts any further same-sex weddings for now, and probably will continue to do so until the U.S. Supreme Court rules on the various federal court opinions, including that by U.S. District Judge Richard Young last week. Young's ruling in Indiana mirrored others that contend state laws that deny or don't recognize same-sex marriages violate the equal protection clause of the U.S. Constitution.

'What do we do now?'

Becoming legally married in Indiana is, in effect, a three-step process. First, a marriage license must be obtained. Then, a marriage ceremony must be performed by an officiant such as a clergy member, judge or certain municipal officials such as the clerk. The couple must then return their license — signed by the officiant — to the clerk to be recorded.

That process, coupled with the timing of the ruling and stay, has left many, including Vicki Gordon and her partner, Kim Zeller, in a particular legal limbo.

“The state can't just say these marriages are void and treat these couples like they are second-class citizens.”

Rana Elmir, deputy director ACLU of Michigan

They planned to marry in a ceremony Saturday. They obtained their marriage license Friday — legally in their minds and, at the time, the eyes of the law — but called off the wedding. She said they have other friends in the same position.

"We're all just wondering 'what the heck' and 'what do we do now?' " Gordon said. "I've done a lot of research online in the last day and I'm afraid if we go ahead that we and the person who officiates could be arrested or face a big fine."

Also potentially in limbo, those who obtained licenses issued before the stay, but that had not yet been returned and recorded by the clerk.

"We just don't know," said Angie Nussmeyer, spokeswoman for Marion County Clerk Beth White, who took an early lead in issuing licenses. "We have attorneys looking into it and hope to know more next week."

Ken Falk, legal director for the ACLU of Indiana, which brought one of the lawsuits that prompted Young's ruling, said there should be no question.

"Our position is that these couples were legally married at the time," he said, "and that they are legally married now."

But the experiences of more than 1,500 gay couples who married between court rulings and stays in other states tell a different story.

Carl Tobias, a professor at the University of Richmond School of Law, said couples who were married before the stay was issued will find themselves in legal limbo that could linger for a year or more.

Based on what has happened in Utah, Michigan and Wisconsin, where more than 1,500 couples wed before stays were issued, Tobias said the Indiana newlyweds are likely to receive federal benefits, such as Social Security and filing joint federal income tax returns.

But during the appeal, they are not likely to have their marriages recognized in Indiana. That could affect everything from state taxes and adoptions to hospital visitation rights and death certificates.

"Until the legal question is finally settled, we really don't know what their status will be," Tobias said. "We've seen all these people getting married and hoping things will work out, and they probably will, but we just don't know that yet."

Stays in other states

It will probably require a determination from the U.S. Supreme Court to resolve the contentious legal debate over same-sex marriage, and that action could be a year or more away.

In California, the marriages of gay couples who wed in 2008 — after the state Supreme Court struck down a state ban as unconstitutional and before voters passed a referendum that temporarily stopped the marriages — were still recognized as valid by the state.

But that is the exception. In more recent cases, states have denied benefits to couples married during short windows before appeals were filed.

In Michigan, about 300 gay couples were married after a federal judge struck down that state's ban on same-sex marriage in March, said Rana Elmir, deputy director of the ACLU of Michigan.

But days later, after a stay was granted, Elmir said the couples had their hopes and joys dashed. The governor announced that, while their marriages were legal, they would not be recognized for the purposes of state benefits.

The ACLU filed a federal lawsuit in April seeking to force the state to fully recognize those marriages.

“I've done a lot of research online in the last day and I'm afraid if we go ahead that we and the person who officiates could be arrested or face a big fine.”

Vicki Gordon, part of couple with marriage license

"What we're saying is the state is obliged to extend the protections of marriage to these couples," she explained. "The state can't just say these marriages are void and treat these couples like they are second-class citizens."

In Utah, where about 1,300 couples married in late December and early January, the state has refused to acknowledge their marriages for all purposes but income tax calculations, said John Mejia, legal director for the ACLU of Utah. He said the state taxing authority found that the couples who were legally married Dec. 31, which was before the stay was issued, could file joint state tax returns.

"To these families, every day of waiting is another day of their rights being denied," Mejia said. "They can't get birth certificates. There are questions about hospital visitation and retirement benefits. This isn't some hypothetical legal discussion. These are everyday issues faced by all families and, without clear action, it really does have an impact on their lives every day."

Couples persevere

Still, many Indiana gay couples who made the historic plunge last week went into their marriages knowing of the potential pitfalls — and for reasons other than insurance or other benefits.

"We're going into this with eyes wide open," said Michael Jacobs, 53, who was standing in line to get a marriage certificate at the Marion County clerk's office Friday with his partner, Chuck Bruce.

Bruce, 52, said they could handle the delayed state tax benefits and other lack of equal footing with straight couples. It's the attitude behind the inequality, he said, that really bothers them.

"(A stay) would be stating in some way that what we're doing is not right," he said, "and I do have an issue with that."

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Aiden Murphy, 11, smiles as his mothers Kimberly Trojan, left, and Jackie Cornell wait in a large crowd for their marriage license inside the City County Building, Wednesday, June 25, 2014. A federal judge ruled Wednesday that Indiana's ban on gay marriage is unconstitutional.
Brent Drinkut/The Star

Brittany Jones and Ailce Hoenigman embrace after their wedding inside the City County Building, Wednesday, June 25, 2014. A federal judge ruled Wednesday that Indiana's ban on gay marriage is unconstitutional.
Brent Drinkut/The Star

A large crowd waits for the marriage licenses inside the City County Building, Wednesday, June 25, 2014. A federal judge ruled Wednesday that Indiana's ban on gay marriage is unconstitutional.
Brent Drinkut/The Star

Matthew Lusher officiates the wedding of Nicole Tullis, left, and Ellen Snyder in a hallway inside the City County Building, Wednesday, June 25, 2014. A federal judge ruled Wednesday that Indiana's ban on gay marriage is unconstitutional.
Brent Drinkut/The Star

Richard Friedman, left, and David Brandon hold the hands of their son, Edwin Brandon-Friednman, during their wedding ceremony presided over by Marion County clerk Beth White inside the City County Building, Wednesday, June 25, 2014. A federal judge ruled Wednesday that Indiana's ban on gay marriage is unconstitutional.
Brent Drinkut/The Star

Robert Hoke, center, and Jeffery Hostetler pray over their wedding rings with Marion County clerk Beth White during their marriage inside the City County Building, Wednesday, June 25, 2014. A federal judge ruled Wednesday that Indiana's ban on gay marriage is unconstitutional.
Brent Drinkut/The Star

Wednesday June 25th, 2014, Lacie Little (left), and Mindy Little (right), held their son Harvey, while they were wedded by Universal Life Church Pastor Reid Antonacchio. Couples flock to the City County Building in Indianapolis to wed after the ban on gay marriage was overturned.
Michelle Pemberton/The Star

Wednesday June 25th, 2014, Scott Bardash (left), and Robert Lynn (right), wait in line for a marriage certificate. Couples flock to the City County Building in Indianapolis to wed after the ban on gay marriage was overturned.
Michelle Pemberton/The Star

Wednesday June 25th, 2014, Mike Barclay (above), and Mickey Rodgers (below), fill out computer paperwork before marrying. The couple has been together 10 years. couples flock to the City County Building in Indianapolis to wed after the ban on gay marriage was overturned.
Michelle Pemberton/The Star

Wednesday June 25th, 2014, Chris Paulsen (left), and Deanna Medsker (center left), pose for a photo with their lawyers, karen Celestino-Horsman (center right), and Kathleen Sweeney (far right). The attorneys were part of the legal team which represented first responders challenging pension funds refusal to to recognize same sex marriages, which led to the gay marriage ban being overturned on this day.
Michelle Pemberton/The Star

Wednesday June 25th, 2014, Lacie Little (left), and Mindy Little (right), held their son Harvey, while they were wedded by Universal Life Church Pastor Reid Antonacchio. Couples flock to the City County Building in Indianapolis to wed after the ban on gay marriage was overturned.
Michelle Pemberton/The Star

Wednesday June 25th, 2014, Lacie Little (left), and Mindy Little (right), held their son Harvey, while they were wedded by Universal Life Church Pastor Reid Antonacchio. Couples flock to the City County Building in Indianapolis to wed after the ban on gay marriage was overturned.
Michelle Pemberton/The Star

Wednesday June 25th, 2014, Lacie Little (left), and Mindy Little (right), held their son Harvey, while they were wedded by Universal Life Church Pastor Reid Antonacchio. Couples flock to the City County Building in Indianapolis to wed after the ban on gay marriage was overturned.
Michelle Pemberton/The Star

Wednesday June 25th, 2014, Scott Bardash (left), and Robert Lynn (right), wait in line for a marriage certificate. Couples flock to the City County Building in Indianapolis to wed after the ban on gay marriage was overturned.
Michelle Pemberton/The Star

Wednesday June 25th, 2014, Lacie Little (left), and Mindy Little (right), held their son Harvey, while they were wedded by Universal Life Church Pastor Reid Antonacchio. Couples flock to the City County Building in Indianapolis to wed after the ban on gay marriage was overturned.
Michelle Pemberton/The Star

Wednesday June 25th, 2014, Lacie Little (left), and Mindy Little (right), held their son Harvey, while they were wedded by Universal Life Church Pastor Reid Antonacchio, (far left). Couples flock to the City County Building in Indianapolis to wed after the ban on gay marriage was overturned.
Michelle Pemberton/The Star

Wednesday June 25th, 2014, Lacie Little (left), and Mindy Little (right), hold their son Harvey high, after they were wedded. Couples flock to the City County Building in Indianapolis to wed after the ban on gay marriage was overturned.
Michelle Pemberton/The Star

Wednesday June 25th, 2014, Lacie Little (left), and Mindy Little (right), held their son Harvey, while waiting for marriage paperwork. Couples flock to the City County Building in Indianapolis to wed after the ban on gay marriage was overturned.
Michelle Pemberton/The Star

Wednesday June 25th, 2014, Craig Bowen (left), Jake Miller (right), become the first gay couple married by Marion County Clery Beth White, at the City County Building in Indianapolis Indiana.
Michelle Pemberton/The Star

A large crowd waits for the marriage licenses inside the City County Building, Wednesday, June 25, 2014. A federal judge ruled Wednesday that Indiana's ban on gay marriage is unconstitutional.
Brent Drinkut/The Star

Wednesday June 25th, 2014, Marion County Clery Beth White, signs the marriage license for Craig Bowen (center right), Jake Miller (right), who became the first gay couple married at the City County Building in Indianapolis Indiana.
Michelle Pemberton

Wednesday June 25th, 2014, Craig Bowen (left), Jake Miller (right), hold their certificate of marriage, before becoming the first gay couple married by Marion County Clery Beth White, at the City County Building in Indianapolis Indiana.
Michelle Pemberton/The Star

Wednesday June 25th, 2014, Craig Bowen (left), Jake Miller (right), become the first gay couple married by Marion County Clery Beth White, at the City County Building in Indianapolis Indiana.
Michelle Pemberton

Wednesday June 25th, 2014, Craig Bowen (left), Jake Miller (right), become the first gay couple married by Marion County Clery Beth White, at the City County Building in Indianapolis Indiana.
Michelle Pemberton/The Star

Wednesday June 25th, 2014, the first first gay couple married in Indiana Craig Bowen (right), and Jake Miller (left), get a hug from Katelyn Miner, and her fiancee Jake Miller (not shown), who happened to also be applying for their marriage license when the couple and media showed up.
Michelle Pemberton

Rev. Mary Ann Macklin, center, officiates the wedding ceremony for Jeff Jewel, left, and Jeff Polling, who have been together for 18 years, on the steps of the Monroe County Justice Building in Bloomington, Ind. on Wednesday, June 25, 2014.
(AP Photo, Bloomington Herald-Times, Chris Howell)

Sarah Perfetti, center, and Abby Henkel, left, are married by the Rev. Mary Ann Macklin outside the Monroe County Justice Building on Wednesday, June 25, 2014, in Bloomington, Ind.
(AP Photo/The Herald-Times, Chris Howell)

Michael Schaefer, 36, center, looks on as Kyle Kennedy, 23, signs their marriage license at the Vanderburgh County Clerks office in Evansville, Ind. on Wednesday, June 25, 2014. Judy Ludwig, right, of the Clerks office was waiting to print their ornamental license from her computer. The two, both of Evansville, Ind., became the first same-sex couple to receive a marriage license from the Vanderburgh County Clerk's office in Evansville, Ind.
(AP Photo/The Evansville Courier & Press, Kevin Swank)

Kathy Saunders, left, and her partner Sharon Stanley fill out a marriage license application inside the County Clerk's office in the St. Joseph County Courthouse on Wednesday, June 25, 2014, in South Bend, Ind.
(AP Photo/South Bend Tribune, Robert Franklin)

Aline forms inside the County Clerk's office in the St. Joseph County Courthouse after a federal judge struck down Indiana's ban on same-sex marriages on Wednesday, June 25, 2014, in South Bend, Ind.
(AP Photo/South Bend Tribune, Robert Franklin)

A line forms inside the County Clerk's office in the St. Joseph County Courthouse after a federal judge struck down Indiana's ban on same-sex marriages on Wednesday, June 25, 2014, in South Bend, Ind.
(AP Photo/South Bend Tribune, Robert Franklin)